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Texas Supreme Court won't review Denton IVF case over whether embryos are people

Lab staff prepare small petri dishes, each holding several 1-7 day old embryos, for cells to be extracted from each embryo to test for viability at the Aspire Houston Fertility Institute in vitro fertilization lab Tuesday, Feb. 27, 2024, in Houston.
Michael Wyke
Lab staff prepare small petri dishes, each holding several 1-7 day old embryos, for cells to be extracted from each embryo to test for viability at the Aspire Houston Fertility Institute in vitro fertilization lab Tuesday, Feb. 27, 2024, in Houston. Women over 35 and those facing serious diseases like cancer, lupus and sickle cell are among the most likely to turn to IVF to build the families they desperately want. But in Alabama, they are among those whose dreams are in limbo after three of the state's largest clinics paused IVF services.

The Texas Supreme Court declined to take up a Denton mother's appeal for justices to weigh whether embryos are legally children subject to child custody laws.

Denton husband and wife Gabriel and Caroline Antoun signed a divorce agreement that said Gabriel Antoun would own the embryos the couple conceived via in vitro fertilization as his property.

A trial court and appeals court both sided with the husband, but Caroline Antoun appealed to the state's highest civil court. She argued the definition of an unborn child as a person in Texas abortion laws after the U.S. Supreme Court overturned Roe v. Wade should apply to her and her husband's situation, making it a child custody case.

The Texas high court denied that petition for review Friday. In an interview with KERA News, Gabriel Antoun said the decision was a relief.

"I can't tell you how much difficulties we faced just trying to, you know, get pregnant and all of that and, you know, dreaming about future kids and everything," he said. "So, recognizing that now from the other end of it, we were a threat to everybody else's dream was a lot to carry on my back, and for me, you know, it's such a relief."

Caroline Antoun decried the court's decision in a statement to KERA News Monday.

“On Friday, the Texas Supreme Court turned a blind eye to the unjust stripping of my parental rights and the violation of my bodily autonomy and reproductive rights," she wrote. "IVF is intended to create children and grow families, not to commodify preborn humans.”

Caroline Antoun's attorney Jason Niehaus said Friday his client was “understandably not thrilled” with the move.

Their hope, he said, was never to jeopardize IVF, but to work within the state’s definition of personhood to give IVF embryos the same rights as those conceived in the womb. Texas law states an unborn child is “an individual living member of the homo sapiens species from fertilization until birth, including the entire embryonic and fetal stages of development.”

“The argument was that the court, in awarding the embryos during divorce proceedings, should consider the possibility of life there, and should take into account considerations consistent with how you award possession, care, custody and control of children during divorce,” Niehaus said. “The position was never ‘these are people.’”

But concerns over the nature of IVF access were valid, he said. The question of whether an embryo is a person as soon as it’s fertilized — inside or outside of the body — or only during pregnancy and beyond is one Niehaus said will likely come up during next year's legislative session.

This comes months after the Alabama Supreme Court ruled embryos are humans, and destroying them could bring civil penalties. Some were anticipating the Texas Supreme Court’s decision on whether to review Antoun v. Antoun in fear of state justices coming to a similar conclusion.

Although the Alabama Legislature soon passed a bill allowing IVF services to restart, the conversation around IVF had lawmakers and prospective parents in other states concerned. Sen. Ted Cruz of Texas and Sen. Katie Britt of Alabama, both Republicans, filed a bill last month aimed at protecting IVF by making states ineligible to receive Medicaid funding if they banned the procedure.

Senate Democrats blocked that bill Wednesday, saying the legislation didn’t go far enough in protecting the procedure and leaves legal loopholes. Democrats’ own effort to protect IVF also failed in a vote Thursday after Senate Republicans blocked it.

Gabriel Antoun, 35, said his focus shifts now to his and his ex-wife’s twin son and daughter, also conceived via IVF, who turn 4 in August. The court proceedings haven’t given him time to think about what he’s going to do with the embryos in his possession.

People were shocked, he said, that he wanted to keep the embryos. His response: why wouldn’t he?

“Who said dads are not involved in their kids’ lives?” Gabriel Antoun said. “Who said it's OK for dads to not be involved in anything related to their genetic material and how it goes and what happens to it?”

The debate over IVF and personhood in Texas is far from over. The Antouns’ case and the Dobbs decision will set up a renewed interest in IVF when Texas lawmakers reconvene for next year, said Patrick Wright, Gabriel Antoun’s attorney.

“People have to recognize that if IVF’s important to them and planning their family's important to them, that they really need to pay attention what happens in January when the Legislature meets, and they need to express their opinion about it and they need to be involved about it, and they need to vote,” Wright said.

This story has been updated with comment from Caroline Antoun.

Got a tip? Email Toluwani Osibamowo at You can follow Toluwani on X @tosibamowo.

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Toluwani Osibamowo is a general assignments reporter for KERA. She previously worked as a news intern for Texas Tech Public Media and copy editor for Texas Tech University’s student newspaper, The Daily Toreador, before graduating with a bachelor’s degree in journalism. She is originally from Plano.